LEGAL RELATIONS OF THE NURSERYMEN, ETC. 443 



absence of express warranty or representation there is an implied 

 warranty that the plants shipped are of the kind and quality con- 

 tracted for z^nd, within the terms of the contract, good marketable 

 stock of the variety ordered. If you select your own plants there 

 is no implied warranty that they are of good marketable stock or 

 even the kind you wanted. The warranty if existing at all is an 

 express warranty and must be proved as such. 



The question is often asked : Suppose after a sale is made for 

 future delivery an attempt is made to cancel the order. Can it be 

 done legally ? To this I answer the facts in each case must govern 

 the decision, and you should always consult your attorney if you 

 care to either insist on the order of a nurseryman or reject a ship- 

 ment, which may be made notwithstanding a cancellation, or insist 

 on a claim for damages by reason of loss of sale. 



As a general proposition, an accepted contract of sale, legally 

 made and otherwise -valid, cannot be cancelled on the mere whim 

 of either party, however much he may desire to do so, but, as a 

 practical question, it usually costs so much to enforce such a con- 

 tract, compared with the result obtainable and considering the de- 

 lay of litigation, that it does not pay to enforce it. A contract can 

 be cancelled or rescinded by reason of fraud in the making of the 

 same, or false representation material thereto and relied upon by 

 either party, by reason of which it was entered into ; as, for instance, 

 a positive statement as to the ability of the principal to perform the 

 contract, his financial standing, his being a grower of plants in- 

 stead of being merely a dealer in the same, or as to the kind or 

 quality or other features of the plants sold. 



Another reservation should also be made. If the contract 

 is to be accepted by the principal before it becomes valid — and it 

 must be accepted within a reasonable time — then before such ac- 

 ceptance it is a mere offer and subject to cancellation at the whim 

 of the customer. This provision is very commonly inserted- in the 

 order blanks used by agents of large jobbers, where the principal 

 wishes to reserve for himself the right to pass upon the desirability 

 of the sale" or the financial responsibility of the customer or for many 

 other reasons. 



If the plants delivered are not up to contract grade or kind 

 or not delivered on time, if time is important, the contract can 

 usually be rescinded and is always subject to rescission by the other 

 party if either party refuses to perform. The customer must act 

 promptly and positively. He cannot accept the goods and then 



